X.T. v. M.M.

BAKER, J., dissenting.

The majority describes a difficult situation for unwed teenage parents, and the fortunate situation of a loving adoptive couple who were chosen by the mother in her decision-making process regarding her newborn infant. However, this case cannot be determined by examining the intimate details within the important process an unwed mother undertakes in her decision regarding the birth and care of her child. Neither can it focus on whether the putative father had established a substantial relationship with the child prior to the adoption proceedings. The issue before us is whether a putative father, who filed his notices of paternity in the state where the child was conceived, and also the state where the child was born, is entitled to notice.

The majority cites and relies upon Lehr v. Robertson, 463 U.S. 248 , 103 S.Ct. 2985 , 77 L.Ed.2d 614 (1983), to support its position that a “putative father must establish an opportunity to establish parental rights by | ^performing parental duties.” The majority also agrees with a concurring opinion from a Kansas court that a putative father has only one way to ensure that he can exercise his parental rights after the birth of a child born outside of marriage, regardless of whether the mother intends to exercise her parental rights:

“He must relinquish possession and control of a part of his property or income to the mother to be during the last 6 months of the pregnancy.... The birth ... marks the end of the period when the voluntary support can preserve the father-to-be’s right to raise his child.” In re Adoption of M.D.K., 30 Kan.App.2d 1176 , 58 P.3d 745, 750 (2002)(Beier, J., concurring).

Significantly, in the Kansas case, the majority specifically noted that the unwed father failed without reasonable cause to support the mother in the six-months prior to the child’s birth, and the father was not thwarted in his attempts to support the mother. In this case, the pregnant mother lived with the putative father until December 18, 2007, in Texas and gave birth on February 24, 2008, in Missouri. Even under the majority’s parameters, appellant provided support to the mother within that six month period. Furthermore, it is unquestioned that he was thwarted in his efforts to contact and have the opportunity to establish his parental rights.

Under our concept of due process, that opportunity includes notice to the putative father. In Lehr, supra, relied upon by the majority, the Supreme Court held that where the putative father had never established a substantial relationship with his child, the failure to give him notice of pending adoption proceedings, despite the state’s actual notice of his existence 1gnand whereabouts, did not deny the putative father due process or equal protection since he could have guaranteed that he would receive notice of any adoption proceedings by mailing a postcard to the putative father registry.

In this case, the father registered in the state of Texas 7 where the child was conceived and the state of Missouri 8 where the child was born. He, however, did not register in every other state of the union. As one scholar has noted:

Putative father registries have generated a great deal of criticism. Critics argue that few men are aware of the registries or the need to register to protect their rights, women may conceal their pregnancy or misrepresent the situation, and filing with the registry in one state does not guarantee notice of an adoption in other state.

31 Hofstra L.Rev. 877, 898 (Spring 2003); see also Mary Beck, Toward a National Putative Father Registry Database, 25 Harv. J.L. & Pub. Policy 1031, 1039 (2002).

Due process is fundamentally about having a meaningful opportunity to be heard in a meaningful time frame. Tsann Kuen Enters. Co. v. Campbell, 355 Ark. 110 , 129 S.W.3d 822 121 (2003). The notice requirements within the code vary according to the purpose of each statute; so long as the notice provided is “reasonably calculated” to apprise interested parties of the pen-dency of the action, the notice will pass constitutional muster. Id.

In this case, the putative father registered in two states to preserve his opportunity to develop a relationship with his child. The registry system is flawed when the adoption of a child is in a state for which the putative father has no notice. The majority’s interpretation of our statute leaves a putative father, who has registered in other states based on information regarding his newborn child’s significant contacts, with no meaningful opportunity to be heard in a meaningful time frame. That interpretation of the statute makes it constitutionally suspect. For that reason, I dissent.

VAUGHT, C.J., HART and GLADWIN, JJ., join.

. Our supreme court has found that Arkansas courts' exercise of jurisdiction over a nonresident putative father would not offend traditional due process notions of fair play and substantial justice, and thus court had personal jurisdiction over putative the father in paternity action; putative father was resident of Texas, which was state just to southwest of and bordering Arkansas, putative father was able to travel to Arkansas and back in same day, and State of Arkansas had interest in protecting its minor children and in ensuring payment of child support on their behalf. U.S. Const, amend. XIV; Ark.Code Ann. § 16-4-101(B)(Repl.l999); Payne v. France, 373 Ark. 175 , 282 S.W.3d 760 (2008).

. While the Missouri statute allows a scant fifteen days after the birth of the child during which the putative father can register, the Missouri legislature designed its statute with the built-in requirement that the public be informed about the PFR and mandated mechanisms such as public service announcements to be used so that the information could be widely disseminated. See Mo. Ann. Stat. § 192.016.7 (West 2004).